Charles Warner is to be executed tonight. He and three other Oklahoma death row inmates filed a petition for certiorari and an application for stays of their executions, contending that Oklahoma's lethal injection protocol violates the Eighth Amendment. I believe that petitioners have made the showing necessary to obtain a stay, and dissent from the Court's refusal to grant one.

I

Oklahoma had originally scheduled Warner's execution for April 29, 2014, immediately following its execution of Clayton Lockett. Both executions were to be carried out with a three-drug protocol consisting of midazolam, vecuronium bromide, and potassium chloride. In theory, at least, midazolam should render a condemned inmate unconscious, vecuronium bromide should paralyze him, and potassium chloride should stop his heart.

But the Lockett execution went poorly, to say the least. Lockett awoke and writhed on the execution table for some time after the drugs had been injected and officials confirmed him to be unconscious. He was overheard to say, " 'Something is wrong,'" and, " 'The drugs aren't working.'" App. C to Pet. for Cert. 6 (App.). Eventually, some 40 minutes after the lethal injection drugs were administered, Lockett died.

The State stayed all pending executions while it investigated what had gone wrong. Ultimately, the State issued a report that placed much of the blame on the execution team's failure to insert properly an intravenous (IV) line, finding that a large quantity of the drugs that should have been introduced into Lockett's blood stream had instead pooled in the tissue near the IV access point. An autopsy did determine, however, that the concentration of midazolam in Lockett's blood was higher than necessary to render an average person unconscious.

Soon thereafter, the State adopted a new execution protocol. The protocol contains a number of procedures designed to better ensure that execution team members [135 S.Ct. 825] are able to insert properly an IV line and assess the condemned inmate's consciousness. The protocol also provides for four alternative drug combinations that can be used for lethal injections, one of which is the same midazolam/vecuronium bromide/potassium chloride combination that was used in the Lockett execution. Whereas the prior protocol called for the injection of only 100 milligrams of midazolam, the new protocol now calls for the injection of 500 milligrams of that drug. The State has announced that it plans to use this particular drug combination in all upcoming executions.[*]

Warner, along with 20 other Oklahoma death-row inmates, filed a 42 U.S.C. § 1983 complaint against various state officials, contending that the State's proposed use of midazolam in executions would violate the Eighth Amendment. Four of the plaintiffs, including Warner, then requested a preliminary injunction to prevent the State from implementing the new protocol and executing them.

The District Court held a 3-day evidentiary hearing. Two expert witnesses for the plaintiffs testified that although midazolam could be used to render an individual unconscious, it was not and could not be relied on as an anesthetic because the patient could likely regain consciousness if exposed to noxious stimuli--such [190 L.Ed.2d 905] as the injection of potassium chloride. For that reason, the Food and Drug Administration (FDA) has not approved the drug for use as an anesthetic. As anesthesiologist Dr. Lubarsky detailed, midazolam is subject to a " 'ceiling effect'" such that, no matter the dosage, it reaches a point of saturation and has no more effect, and at this saturation point the drug cannot keep someone unconscious. App. C, at 43. According to these experts, this feature distinguishes midazolam--a benzodiazepine, like Valium or Xanax--from barbiturates such as pentobarbital or sodium thiopental, which are often used as the first drug in a three-drug lethal injection protocol. In response, the State called a doctor of pharmacy, Dr. Evans, who disputed these claims. Although Dr. Evans acknowledged that midazolam was not generally employed as an anesthetic, he contended that it would function as one if given in a high enough (and ordinarily lethal) dose.

The District Court denied the plaintiffs' motion for a preliminary injunction, concluding that they had demonstrated no likelihood of success on the merits of their claims. The District Court found that " [t]he proper administration of 500 milligrams of midazolam . . . would make it a virtual certainty that any individual will be at a sufficient level of unconsciousness to resist the noxious stimuli which could occur from the application of the second and third drugs." Id., at 42. Based on that finding, the District Court held that the plaintiffs had failed to establish that the protocol " presents a risk that is 'sure or very likely to cause serious illness and needless suffering.'" Id., at 65 (quoting Baze v. Rees, 553 U.S. 35, 50, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (plurality opinion of ROBERTS, C. J.)). The District Court also concluded that there was a " separate reason" the plaintiffs had failed to establish a likelihood of success: They had not identified a " 'known and available alternative'" by which they could be executed, as the State had " affirmatively shown that ...

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